Can State Intervene in Medical Decisions? ; Florida Supreme Court Will Decide If Gov. Jeb Bush Was Right in Restoring a Feeding Tube to a Critically Ill Woman

Article excerpt

For 14 years, Terri Schiavo has relied on a nutrition tube inserted into her throat to keep her alive.

During six of those years, the severely brain-damaged Florida woman has existed at the center of a highly emotional legal struggle to determine whether the tube should remain or be removed.

The resulting controversy has sparked a national debate between "pro-life" advocates and "death with dignity" supporters, with each side claiming to be acting in accord with Mrs. Schiavo's wishes.

Her case, set to be heard by the Florida Supreme Court this month, has pitted Florida's governor and lawmakers against judges. And it has spawned an increasingly bitter dispute between her husband, who favors allowing her to pass away, and her parents, who are fighting to keep her alive.

Through it all, one fact remains undisputed. There is only one person who knows the correct answer to whether Terri Schiavo wants to live or die - but she is unable to communicate her wishes. In some states, that fact alone would end the case. Without concrete evidence of a patient's intent, such as a living will, judges lack the authority to order such an irrevocable outcome.

Florida's interpretation

But in Florida, judges are broadly construing the state constitution's privacy provision to permit a third person, acting as guardian, to ask a judge to end another person's life based on earlier statements suggesting an intent to die. In Mrs. Schiavo's case, the judge found persuasive the testimony of her husband, Michael, and two others who said that prior to her current condition they heard her say that she would not want to be kept artificially alive.

Accepting that testimony, a judge ordered the removal of the feeding tube last October. The move capped years of litigation and scrutiny of the case by judges. But it also prompted an outcry from Mrs. Schiavo's parents and pro-life activists.

Within days, state lawmakers, opposed to the action, passed a special law empowering Gov. Jeb Bush to block the judge's ruling and keep Mrs. Schiavo alive.

It is that special law and extraordinary action by Governor Bush that the Florida Supreme Court will consider on Aug. 31.

To many legal experts, that action by the governor and lawmakers is a violation of the separation of powers, with Bush and the Legislature usurping judicial authority. Some legal experts also see it as an infringement of the right of Florida residents under the state constitution's privacy clause to be free from government interference in private medical decisions.

"The state's interest in preserving life cannot override the patient's right to discontinue medical treatment," says George Felos, who represents Mr. Schiavo.

Kenneth Connor, who is representing Bush, disagrees. …